The opinion of the court was delivered by: ROSEMARY S. POOLER
Defendant Collin K. Craig moved pursuant to 18 U.S.C. § 924(d)(1) for the return of 10 rifles, five shotguns and assorted ammunition that the government seized in accordance with a search warrant on January 12, 1995. For the reasons that follow, the motion is denied.
On June 12, 1984, Craig was convicted after a bench trial in New York State Supreme Court on 62 counts for various crimes, such as grand larceny, burglary, criminal mischief official misconduct, and criminal possession of stolen property. As a result of his conviction, Craig was imprisoned in a state penitentiary and paroled on December 11, 1985. On January 12, 1995, agents of the federal Bureau of Alcohol, Tobacco and Firearms executed a warrant authorizing the search for weapons in Craig's Watertown home. During the search, agents seized 10 rifles, five shotguns and assorted ammunition. Craig was arrested on January 12, 1995.
Craig subsequently was indicted on February 15, 1995, and charged with two violations each of 18 U.S.C. §§ 922(g)(1) and 924(d)(1). The first count involved the illegal possession of a Ruger Model 77/22 .22 caliber rifle on or about April 1, 1991, and the second count involved the illegal possession of a Savage 30-30/ 12-gauge shotgun/rifle on or about April 1, 1991. After a jury trial, Craig was acquitted of both counts on April 18, 1995. At the close of trial, defense counsel made an oral motion for return of all weapons seized by the government. Craig subsequently filed a written affidavit in support of the motion. Oral argument took place on August 7,1995.
Craig argues that Section 924(d)(1), 18 U.S.C. § 924(d)(1), requires return of his weapons because he was acquitted of the firearms charges. Craig further argues that he legally can possess the firearms previously seized because he obtained a certificate of relief from disabilities on June 11, 1991, from Judge Walter T. Gorman of the New York State Supreme Court (the "June 11 Certificate"). The government responds in opposition that the June 11 Certificate is invalid and that Craig has not been relieved of the civil disability prohibiting his possession of firearms.
Upon his state criminal conviction, Craig lost the civil right to possess firearms, but that right may be restored by an appropriate certificate of relief from disabilities. N.Y. Correct. Law § 701(1) (McKinney 1987). Craig relies on the June 11 Certificate as proof that he can possess firearms legally. On its face, the certificate permanently relieves Craig of "all disabilities and bars to employment, excluding the right to be eligible for public office." Craig contends that Judge Gorman validly issued the certificate pursuant to N.Y. Correct. Law § 702(1), which provides that "any court of this state may, in its discretion, issue a certificate of relief from disabilities to an eligible offender for a conviction that occurred in such court, if the court either (a) imposed a revocable sentence or (b) imposed a sentence other than one executed by commitment to an institution under the jurisdiction of the state department of correctional services." Id. § 702(1). There is no dispute that Judge Gorman was the judge who presided over Craig's state trial and sentencing.
However, the government contends that the June 11 Certificate nonetheless was invalid and without effect because Judge Gorman neither imposed a revocable sentence nor imposed a sentence under the jurisdiction of local correctional services as required by Section 702. According to the government, because Craig received a sentence committing him to state prison, he only may receive a certificate of relief from the state parole board under Section 703 of the New York Correction Law. Pursuant to Section 703(1), the "state board of parole shall have the power to issue a certificate of relief from disabilities to: (a) any eligible offender who has been committed to an institution under the jurisdiction of the state department of correctional services." Id. § 703(1). Therefore, the government states that Judge Gorman lacked authority to issue Craig a certificate of relief, the June 11 Certificate is invalid, and Craig remains under the civil disability preventing him from possessing firearms.
In further support of its position, the government supplied an affidavit from James V. Murray, Director of the Executive Clemency Bureau of the New York Division of Parole. In his affidavit, Mr. Murray confirms that Craig was convicted of a felony in state court and received a sentence to a state correctional facility. Aff. of James V. Murray of 6/5/95, at P 3. Mr. Murray states further that the New York State Board of Parole issued Craig a certificate of relief from disabilities on March 31, 1986, (the "March 31 Certificate"), but this certificate did not restore Craig's privilege to possess firearms. Id. P 4. Importantly, Mr. Murray states that Craig never received "an enlargement, enhancement, or modification" of his March 31 Certificate, so that he currently is unable to lawfully possess or own firearms.
Id. PP 5-6.
In support of his contention that the June 11 Certificate is valid, Craig posits three arguments. He argues first that the government is estopped from challenging the validity of the June 11 Certificate because the government did not indict Craig for weapons possession occurring after June 11, 1991, and did not argue at trial that such possession was illegal. Second, Craig contends that the June 11 Certificate enjoys a presumption of regularity and proper jurisdiction. Craig argues third that the state Supreme Court had jurisdiction to issue the June 11 Certificate. I will address each of these arguments.
Craig's second argument also must be rejected. Even if it is true that the June 11 Certificate enjoys a presumption of regularity and proper jurisdiction, that presumption is not irrebuttable. The court may consider the facts in the record as well as the relevant statute to determine whether the June 11 Certificate in this case is valid. As discussed more fully below, the law as applied to the facts of this case compels the conclusion that Judge Gorman lacked jurisdiction to issue a certificate of relief to Craig. See In Re: Application of Leona M. Helmsley, 152 Misc. 2d 215, 575 N.Y.S.2d 1009, 1012 (N.Y. Sup. Ct. 1991). In Helmsley, the state Supreme Court declined to issue defendant a certificate of relief because "the statutory scheme dictates that those offenders who are convicted and receive felony time must make their application to the State Parole Board, and this is so ...